Untitled Texas Attorney General Opinion ( 1985 )

. .
The Attorney General of Texas
Ma:,ch 19. 1985
JIM MAl-lOX
Attorney General I
SupromE
coull BUlldIng Eonorable Wilhclmlnc~ Delco Opinion NO. JM-302
P. 0. Box 12548 chairman
AUSlIr&TX. n711.2s45 Eigher education cum1ittee Re: Whether the legislature may
51w752So1 Texas House of Reprcmentatives impose a longer residency require-
TW.x OlW37C1337
Thco~kc 51214750286 P. 0. Box 2910 meut on out-of-state residents
Austin, Texas 787ti!l who wish to ‘qualify for resident
tuition at * state university
714 Jmkwn. Suite 700
cwlar. TX. 7S20245oS
Dear Representative Delco:
ZW742dou
In all 50 statmes, a distinction ie made between residents and
4S24Albert* Ave., sun. 10 nonresidents of the state regarding the tuition payable by students at
El Paso, TX. -2293 state-supported colleges and universities. The ~onstitutlonallty of
01- that distinction is not questioned. See Note, The Coostitutionalit~
of Nonresident Tuition, 55 Mm. L.?kv. 1139 (1971). You have
1001Texm. Suite 700 requested our opin:%ii?regarding the constitutionality of durational
nou*1on.
TX. 77002-3111 residence requirements applicable to a student’8 eligibility for the
71- tuition paid by realdent students.
Section 54.05:! of the Texas Education Code provides that an
SO5Broadway.Suit. 312
Lubbock.TX. 70401379 individual who comes from outside Texas can be classified a resident
SoSn47-5238 student only if he resides In Texas for a 12-month period preceding
enrollment in an educational institution. Article 55.054 of the
Education Code provides that , after resid%ng in Tuu for at lemt 12
4300 N. T.ntk, Suit. 6
McAllm, lx. 785014os5
months, a omresiiht student may be reclassified as .a resident
SwmS2-4S47 student as provided, in the rules and regulations of the Coordinating
Board, Texas Collega and Dniverslty System , and thereby qualify to pay
resident tuition and fees. You ask whether the state constitutionally
200 Yaln Plau Suite 400 can adopt a residewy requirement that is longer than 12 months for
San Antonlo. TX. 7S2G527S7
non-Texas. residents to qualify for resldent tuition or that requires
w?m54191
students who coaw from out of state to pay nonresident tuition
throughout their college careers. Since you do not submit a special
An Equal OWCWWW proposal or a definite period of time. ve vi11 discuss the question in
Alllmllw ActIOn EIWIOYW the abstract.
The yourteenth Amendment of the United States Constitution
provides that no state may deny to any perwn vithin its jurisdiction
the equal protecttm of the IAWS. The equal protection clause does
not prohibit all legislative classifications. In revleving legis-
lation under the equal protection clause, the Court adhere@ to a
three-tiered test. If s statute infringes on a fundancntal right or
create* lII ioheren,c:Ly suspect classification. the atstute is subject
to strict judicial scrutiny which requires the atate to establish a
D. 1367
gonorable Wilhcluina Delco - Page 2 (J&302)
compelling interest In its enactment. To do so. the state mat
deuonetrate that its purpom or interest is both constitutionally
permissible and eubatantial sad that its use of the classification is
necessary to accomplish its purpose. See In rc Criffiths, 613 U.S.
717 (1973). If a ststute cloee not affect a fundaacntsl right or
creete a suspect claseificatim~. the statute is accorded a preemption
of constitutionality that is not disturbed unless the enactment rests
on grounds wholly irrelevant to the achievement of a legitimate state
objective. The latter stan(lard frequently is referred to as the
rational basis test. See W&van
--- v. Maryland, 366 U.S. 420 (1961). A
person challenging a classification judged by the rational basis test
must establish that the claeeification does not bear a fair relation-
ship to a legitimate public purpose, whereas a state must justify a
suspect classification by s,howing a compelling state interest.
Finally, in certain instances , the Court has inquired whether legisla-
tion furthers the “substantial interest” of the state. See Plyler v.
Doe,
- 457 U.S. 202 (1982); reh’
-- 8 denied, 458 U.S. 1131 (19m.
Statutes requiring one-year residency as a condition of welfare
and voter eligibility have come under attack as violations of the
equal protection clause in cases in which the United States Supreme
Court applied strict judicial scrutiny because the statutes had the
effect of penaliring persons vho exercised the fundamental and con-
stitutionally protected right to travel from state to state. Shapiro
v. Thompson, 394 U.S. 618 (1969). is a landmark case in which the
United States Supreme Cour: nullified statutory provisions vhich
conditioned eligibility for welfare benefits on a one-year residency
requirement which had a chillings effect on interstate travel. In Dunn
v. Blumeteln~ 405 U.S. 330 (1972). the Supreme Court struck d=
one-year durational residency requirament for voting in elections
because the state uas penalizing persons who had exercised their
conetitutionally protected right to interstate travel. See also
Plemorlal Eospital v. Maricops County. 415 U.S. 250 (1974) (one-year
residency requirement for m&Cal care to indigents impinges on right
to travel and not justified 'by compelling state interest); Attorney
. General Opinions MU-538 (1981); B-1208 (1978).
On the other hand, vh.en confronted, vith one-yeer residency
requirements for purposes of tuition costs et public colleges. state
and federal courts have determined that such residency requirements
have no real effect on the fundamental right of interstate travel and
have upheld one-year requi:remente by applying the rational basis
standard instead of the “ccmpelling state interest test.” In such
cases. proof of the student’s intent to be domiciled in the state
probably is a more juetifisb!.e purpose than equalization of costs. but
both purposes have been recognized by the courts. Such cases alloved
the states to require a etudcnt to reside in the state for one year as
evidence of his bona fide Intent to be permanently domiciled there.
See Weaver v, Kelton. 357 F. Supp. 1106 (E.D. Ter. 1973) (upholding
section 54.052( ) f the Texas Education Code es rationally related to
legitimate atatee interest); Starns v. Halkerson, 326 F. Supp. 234
Honorable Uilhelm~na Delco - Page 3 (JH-302)
(D.C. Hinn. 1970). aff'd, 401 U.S. 985 (1971) (regulation imposing
one-year waiting period for resident status for tuition purposes
uuheld because riaht of interrtate travel not infrinned and reaulation
sstisfled rational basis test); Sturgis v. State of iaehington; 368 F.
SUPP. 38 (U.D. Wash. 1973), _- aff'd. 414 U.S. 1057 (1973) (one-year
residency requirement for tuition purposes. scrutinized under rational
basis test. bore reasonable rc!lationehiu to leaitlmate state ournose):
Thompson vi Board of Regents elf University of Nebraska, 188 N:U.id 8i0
(Neb. 1971) (holding durati&al residency requirerent for tuition
purposes not penalty~ on exercise of righi of interstate travel and
reasonable under rational bar;?;6 test); Kirk v. Board of Regents of
Univereity of California, 78 Cal. Rptr. 260 (Cal. App. 1969). appeal
dismissed. 396 U.S. 554 (1965) (applying rational basis test because
cost of tuition did not infringe on right to travel).
The courts consistently have dlstingulehed tuition vaiting
periods from velfere veiting Ferlods and have determined that a one-
year tuition vaitlng period is lees likely than a one-year velfare
waiting period to deter a pe!:rlon from exercising his right to change
residences.
We are not aware of any case in vhich a court ves confronted vith
the ccmetltutionality of a durational residency requirement for
tuition purposes in excess of one year. A one-year period of
resldencv is the usual reauirement emnloved bv virtuallv all state
universitiee. See Note, Th&~mstituti~na~ity df Nonreeid&t Tuition,
55 I4lnn. L. Rev.1139, 1140 (1971). We cannot Dredict whether the
courts would uphold a period longer than one year-and if so vhere the
courts vould drav the line. We do not know et what point a court may
determine that a longer rel,idency requirement penalizes or has a
chilling effect on the fundancntal conetitutional right of interstate
travel, vhich in turn vould eJhject the requirement to strict scrutiny
and a compelling Interest teat instead of the test vhere the require-
ment only needs to be reesonal,ly and rationally related to a leglti-
mate state purpose. The cese:s upholding one-year residency require-
ments clearly indicate that the requirement must be reasonable but
have determined that the one-,year period is reasonable. In addition,
we cannot rule out the poeelbllity that a court vould adopt a
"substantial interest" test. See
.- Plyler v. Doe. s.
In Kelm v. Carleon, 473 F.2d 1267 (6th Cir. 1973). the court
upheld a one-year residency requirement for reclaseificetion as a
resident student but invalidated as unreasonable a provision requiring
the student to submit proof that he had secured employment in the
state following graduation. In Smith v. Paulk. 705 F.2d 1279 (10th
Cir. 1983). the court held unconstitutional a requirement that private
emploment agency license applicants be residents of the state for one
year preceding such epplicat~lon because it penalized the exercise of
the conetitutional rinterference.’
705 F.2d at 1284.: Savers1 federal courts and this office have
determined that five-year residency requirements for veterans’
preferences and benefits constitute a denial of equal protection by
dlscrimlnatlng against persona exercising the fundamental right of
interstate travel. See
--- Barnes v. Board of Trustees, Michigan Veterans
Trust Fund, 369 F. Supp. 132;‘TW.D. Mlch. 1973); Carter v. Gallagher,
337 F. Supp. 626 (D. Wm. 1.971); Stevens v. Campbell, 332 F. Supp.
102 (D. Mass. 1971); Attorney General Opinion E-654 (1975).
While the cases general.l,y uphold the constitutionality of pro-
vlalone calculated to eetabbl.leh a student’s boua fide intent to be
domiciled in the state. they have atruck down as unconstitutional
provisions vhich have the effect of denying an out-of-state student
the right to show that he became a resident of the state after
entering the university. Rebuttable presumptions of nonresidency lo
these cases have been held conatittitionally permissible. See Clarke
v. Redeker. 406 F.2d 883 (8th Cir. 1969). cert. denied. 396.S. 862
(1969). While a etate may place a strong burden of proof se to change
of residence 00 a former out-of-state student who claims state
residency. each caee muet be decided on its own facts. Accordingly,
the courts in several cases have struck down etatutee containing
lrrebuttable. presumptions and have held that a person must be allowed
the opportunity to rebut a pl,esumption of nonresidency.
The state unquestionably, has the power to llmft the right to vote
to residents. but Texas exceeded that power as to members of the armed
forces who moved to Taxaa during their military duty. In Carriagton
v. Rash. 380 U.S. 89 (1965). the United States Supreme Court declared
unconstitutional a provision elf the Tune Constitution vhich prevented
all member6 of the armad forces who moved to Texan while in the
service from acquiring Taxaa :residence for voting purposes 60 long as
they ramained in the armed forces. The Court held that forbidding a
serviceman an opportunity to controvert the presumption of non-
residency violated the equal protection clause.
Following the aama rationale a6 that expressed by the Supreme
Court in Carrington, the courts have attick down provleions pro-
hibiting students originall:{ classified as nonresident for tuition
purposes from controverting the nonresident claaeiflcation for the
entire period of their attcuiance at a college or university in the
state. In Vlandi6 v. Kline,, 412 U.S. 441 (1973). the Supreme Court
held a permanent, irrebuttabla presumption of nonresidency, vhich was
baaed on the fact that a student wae a nonresident at the time he
applied for admission to a state university , violated the due process
clause of the Fourteenth Amendment. See also Robertson v. Regents of
University of New Mexico. :!!iO F. Supp. 100 (D.N.M. 1972) (holding
p. 1370
Aonorable Wilhelmins Delco - Page 5 (m-302)
statutory provision which pl,ecluded change of ?esldeut status unless
university student mraintained domicile for one year vhile not enrolled
for as many as 6ix hours in 4~quarter or semester created irrebuttable
presumption of nonresidency in violation of due process aod equal
protection clauses of Fourteenth Amendment); N-n v. Graham. 349
P.2d 716 (Idaho 1960) (holdinS as arbitrary , capricious. and unreaaon-
able a regulation requiring student at state univer6ity properly
classified as nonresident to be frozen in that classification through-
out period of attendance (Lt: the university despite the fact the
student established bona fjd,e domicile in the state after initial
enrollment).
A permanent, irrebuttable presumption of nonresidency is not
rationally related to the purpose of distinguishing between bona fide
re6ldenta and nOn?eSidentS. We believe that a provision that requires
students from other states to pay nonresident tuition throughout their
college careers without aff’mding the Student6 an opportunity to
submit evidence that they have become Texas resident6 since entering
the university. in order to rebut the presumption of nonresidency.
would not be upheld by the courts if challenged.
,‘;UHHARY
The distinction between residents and non-
residents for charSing tuition at state colleges
and universities 1;s reasonable and constitutional.
Also. durational residency requirements of one
year have been held to be reasonable and constltu-
tional. A durational residency requirement for
tuition purposes that is longer than one year
would probably Iaise constitutional questions
which have not yet: been considered or determined
by the courts. A :?ennanent. irrebuttable presump-
tion denying 6tudenl:s the opportunity to letablleh
Texas residency during their college careers
probably would not be upheld by the courts.
JIU MATTOX
Attorney General of Texas
TOPIGRF.EN
First ASSiStant Attorney Gem.raI
DAVID R. RICRARDS
Executive ASSiStAnt Attorney General
ihmorabla Wilhelmina Delco - :Page 6 (JX-302)
RIa( GILPIN
Chairman, Opinion Comittee
Prepared by Nancy Sutton
Asalatant Attorney General
APPROVED:
OPINION COEMITTPZ
Rick Gilpin. Chairman
Jon Bible
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer BiggO
Nancy Sutton
p. 1372